North Carolina can’t offer anti-abortion license plates unless it also makes plates available for people who support abortion rights, a federal judge said in a ruling that squelches the plan that included proceeds going to crisis pregnancy centers in the state.
“This court concludes ... that the state’s offering of a Choose Life license plate in the absence of a pro-choice plate constitutes viewpoint discrimination in violation of the First Amendment,” Judge James Fox said in his ruling.
State attorneys are reviewing the order and haven’t decided whether to appeal, a spokeswoman for the state Attorney General’s office said this week.
In 2011, the General Assembly approved 80 specialty plates, including the “Choose Life” one. Each “Choose Life” plate cost $25, of which $15 was to go to the Carolina Pregnancy Care Fellowship, an association of nonprofit pregnancy counseling centers. Carolina Pregnancy Care also was to collect applications for the license plates, which would be produced after 300 people asked for them.
The American Civil Liberties Union of North Carolina Legal Foundation sued to block the anti-abortion plates, saying they violate the First Amendment because there’s no specialty plate for supporters of abortion rights. The state didn’t manufacture the plates because of the court case and the 376 people who applied for them received refunds.
“This is a great victory for the free speech rights of all North Carolinians, regardless of their point of view on reproductive freedom,” said Chris Brook, legal director of the ACLU-NCLF. “The government cannot create an avenue of expression for one side of a contentious political issue while denying an equal opportunity to citizens with the opposite view. We are very pleased that the court agrees that such a one-sided scheme constituted viewpoint discrimination and violated the First Amendment. We would have made the exact same argument if the situation was reversed, and the state planned on issuing a pro-choice plate while not offering one expressing the opposite point of view.”
Republican Rep. Mitch Gillespie of McDowell County, who sponsored the bill, said he will write to Attorney General Roy Cooper, recommending that the state appeal the decision.
“As long as I am in the General Assembly, my goal will be to get that passed,” he said.
Gillespie said he has a plan to allow North Carolina to keep the “Choose Life” plates. A majority of lawmakers didn’t accept his proposal last session, but Gillespie said he plans to try again in 2013. He declined to reveal details of his plan.
Government speech isn’t subject to scrutiny under the free speech clause of the First Amendment, according to a 2009 decision by the U.S. Supreme Court. Fox ruled, however, that plates aren’t purely governmental speech.
“The court finds that this conclusion is in keeping with the common-sense notion that the North Carolina specialty plate program as a whole, and the Choose Life plates in particular, are, at bottom, a government-sponsored avenue to encourage private speech,” wrote Fox, who also temporarily blocked the plates in November 2011.
In 2004, the 4th U.S. Circuit Court of Appeals upheld a South Carolina judge’s ruling that the “Choose Life” plates approved by lawmakers in that state were unconstitutional because they provided one group a forum to express its beliefs without doing the same for those who held a different viewpoint. The U.S. Supreme Court declined to hear the case, and the state was forced to pay Planned Parenthood’s $157,810 legal bill.
The ACLU’s lawsuit notes six attempts by lawmakers during this year’s session to amend the license plate bill to include an abortion rights option.
South Carolina legislators passed another law in 2006 to get around the ruling, allowing any nonprofit to apply directly for special license plates. Before producing the tags, the agency must first collect 400 prepaid orders or $4,000 from a private group. Under that law, South Carolina unveiled “Choose Life” plates in 2008, and Planned Parenthood did not file another legal challenge.
Fox’s ruling notes that lawmakers in North Carolina tried six times to amend the license plate bill to include plates that read “Respect Choice” or “Trust Women. Respect Choice.” The judge also notes that the law prohibits any money raised by the plates from going to any group “that provides, promotes, counsels or refers to abortion.”